California Supreme Court activity for the week of April 26, 2010

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

• A Petition for Review was granted in Pellegrino v. Robert Half International, Inc. (February 25, 2010) (G039985), (reversed trial court order decertifying class after applying Tobacco II) - discussed on this blog here.  The matter will be HELD pending resolution of the lead case, Harris v. Superior Court (Liberty Mutual), Case No. S156555.  The issue for review is the applicability of the administrative overtime exemption to claims adjusters.  The second opinion in Pellegrino does not appear to be under review, based upon the Supreme Court docket.
• A Petition for Review and depublication was denied in Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc., 180 Cal. App. 4th 1542 (Jan. 13, 2010) (held: if plaintiffs claim that their lawsuit was the catalyst to action by the defendant, the pre-lawsuit notification requirement applies not only when fees are sought under Code of Civil Procedure section 1021.5, pursuant to Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004), but also to fee requests under the common-law substantial benefit doctrine).  The decision is consistent with Abouab v. City and County of San Francisco, 141 Cal. App. 4th 643 (2006).
• A Petition for Review was denied in Arce v. Kaiser Foundation Health Plan, Inc., 181 Cal. App. 4th 471 (January 27, 2010) (held: community of interest adequately alleged in putative class action such that defendant's demurrer should have been denied) - discussed on this blog here.

Discovery ruling in Currie-White v. Blockbuster, Inc. holds that a protective order is sufficient protection for class member contact information ordered produced

United States Chief Magistrate Judge Maria-Elena James is on a roll with the class member contact information discovery orders.  In Currie-White v. Blockbuster, Inc., 2010 WL 1526314 (N.D.Cal. Apr 15, 2010), Magistrate Judge James Ordered defendant to produce class member contact information, subject to certain modifications to a pre-existing protective order in the case.  The interesting additional tidbit in this case is that it is described as a "class action against Defendant under the Labor Code Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq."  Moving to certify PAGA-based penalty claims certainly eliminates all the uncertainty about PAGA-based representative actions.

in brief: Ninth Circuit joins others in holding that denial of certification does not destroy CAFA jurisdiction

In United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, et al. v. Shell Oil Company (9th Cir. Apr. 21, 2010) (say that three times fast), a putative class action alleging various wage & hour violations was removed to federal district court pursuant to 28 U.S.C. § 1332(d)(2) (CAFA).  Certification was eventually denied.  The district court concluded that it lacked jurisdiction and remanded the matter to state court.  On appeal, the Ninth Circuit joined the Seventh and Eleventh Circuits in holding that denial of class certification does not divest the federal district court of jurisdiction.  The Court recognized the general principles that jurisdiction is evaluated at the time it is invoked, and subsequent developments do not destroy jurisdiction if it was properly invoked originally.  All else equal, this decision should reduce the overall degree of hapiness experienced by district court judges.  Now they can't put an unsuccessful, removed class action out of its misery with a remand bullet to the head.  Thus, federal district courts will have the pleasure of overseeing more individual, state law-based actions.

Conditionally certified FLSA class of United Auto Credit Corporation Supervisors classified as exempt

United States District Court Judge Ronald M. Whyte (Northern District of California) granted United Auto Credit Corporation's motion to decertify a class of California-based Supervisor (and related) employees after the class was conditionally certified under the FLSA.  Hernandez v. United Auto Credit Corporaiton (N.D. Cal. Apr. 2, 2010) 2010 WL 1337702.  In FLSA actions, many Courts employ a two-phase process for "certification" of FLSA classes, an approach used by the trial court here:

Under the two-step approach, the court first considers whether to certify a collective action and permit notice to be distributed to the putative class members. See Thiessen, 267 F.3d at 1102; Russell v. Wells Fargo & Co., 2008 WL 4104212, at *2-3 (N.D.Cal. Sept.3, 2008). At this first stage, the standard for certification is fairly easy to satisfy. Courts have required only “substantial allegations, supported by declarations or discovery, that the putative class members were together the victims of a single decision, policy, or plan.” Russell, 2008 WL 4104212, at *2.

At the second stage, after discovery has been taken, the court may decertify the class if it concludes that the class members are not similarly situated. Id. at *3. The court can consider a number of factors in deciding whether an action should ultimately proceed collectively, including: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant and whether they appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the required filings before filing suit. Thiessen, 267 F.3d at 1103. However, a requirement that the class members be identical would be inconsistent with the intent of FLSA's provision that a case can proceed as a collective action. Pendlebury v. Starbucks Coffee Co., 518 F.Supp.2d 1345, 1361 (S.D.Fla.2007).

Slip op., at 2.  The motion filed by the defendant in this case concerned the more rigorous showing required in the second stage.  (Side Note:  The Ninth Circuit has not yet explicitly held that it concurs with the two-stage approach, but District Courts have been employing that approach in the Ninth Circuit for many years without opposition.)

In the course of briefing, the plaintiffs apparently advanced the novel argument that the supervision requirement included in the executive exemption test created a ratio requirement where an employer had to show that there were at least two non-exempt employees for every executive:

Plaintiffs' argument overstates the requirement of the pertinent FSLA regulation. Plaintiffs are correct that in order to qualify for the executive exemption, an employee must “customarily and regularly direct[ ] the work of two or more other employees.” 29 C .F.R. § 541.100(a)(3). The language of the regulation, however, does not require a strict mathematical ratio between an “employee employed in a bona fide executive capacity” and “other employees.” All the regulation requires is that an employee customarily or regularly direct the work of two or more other employees. The other employees whose work the executive directs may or may not themselves be executives. Thus, the FLSA does not create a “ratio requirement.” Whether the present conditional class should be decertified, then, depends on the individualized assessment of whether the class members are “similarly situated.” The court now turns to that inquiry.

Slip op., at 3.  No dice.  Turning to the merits of the motion by defendant, the Court, as did the District Court in Weigele v. Fedex (discussed here), placed little weight on the uniform classification of employees by a central office:  "[T]he recent decision of In re Wells Fargo Homes Mortg. Overtime Litig., 571 F.3d 953 (9th Cir.2009), which involved certification under Federal Rule of Civil Procedure 23(b)(3), cautions against placing too much weight on an internal policy of classifying all members of a particular class of employees as exempt."  Slip op., at 5.  More importantly, however, the Court discussed the plaintiffs' inability to rebut substantial evidence showing great disparity in the job duties of different Supervisors.

Are there really that many large businesses out there that let their employees do whatever they want?

Certified class of fedex managers is subsequently decertified

United States District Court Judge Janis Sammartino (Southern District of California) granted FedEx's motion to decertify a class of California-based Dock Service Managers.  Weigele v. Fedex Ground Package System, Inc. (S.D. Cal. Apr. 5, 2010) 2010 WL 1337031.  Taking In re Wells Fargo Home Mortgage Overtime Pay Litig. (Wells Fargo II), 571 F.3d 953 (9th Cir. 2009) really seriously, the Court concluded that predominance was lacking.  Perhaps the Court took Wells Fargo II a bit too seriously: "The Court's second reason [for] its finding that common issues do not predominate is that with the substantially decreased importance of Defendant's common classification scheme, the common issues are a relatively minor portion of this litigation."  I don't think that Wells Fargo II said that a common classification scheme should be viewed with substantially decreased importance.  It said that a common classification scheme could not treated as the sole factor used in a certification analysis.  In any event, the Court's changed view was very clear:

[T]he Court is unclear how a jury will be able to sort out the issues placed before it. It appears that they will need to determine whether each testifying witness was or was not exempt and determine to what extent that witness was not provided with mandated overtime, meal, and rest breaks. They will then need to extrapolate from all of the testifying witnesses to the entire class. But it is unclear which the tools they will have to perform that extrapolation. At worst it appears that they would be left to guess. This is too amorphous to expect a reasonable and rational result from any jury.

Order, at 11.

As I said the other day, another misclassification theory, another class that doesn't make the cut.

Class certification denied to El Torito managers in misclassification suit

In other news, early reports now indicate that the Pope is Catholic.  Another day, another order denying certification in a misclassification suit is upheld.  More specifically, in Arenas, et al. v. El Torito Restaurants, Inc. (ord. pub. April 6, 2010), the Court of Appeal (Second Appellate District, Division Five) affirmed a trial court order denying certification to three subclasses of managerial employees at El Torrito restaurants.  At this point, misclassification suits have the feeling of an arms race where the defendant companies hold a significant technological lead.  Six years after all the excitement occasioned by Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004), the upshot appears to be that, once a trial court picks a side, a Court of Appeal is unlikely to get involved.

In this particular decision, the Court relied heavily on a mix of California Supreme Court decisions and, somewhat disturbingly, a number of federal decisions.  For example, citing Marlo v. United Parcel Service, 251 F.R.D. 476 (C.D. Cal 2008), the Court said: 

The Marlo court identified the exact problem that this Court faces. Individual declarations submitted by the parties have anecdotal value but cannot be considered representative or common evidence. Specifically, the Marlo court stated the following:[¶] ‘Plaintiffs evidence is essentially individual testimony and an exemption policy. Under the circumstances in this case, where Plaintiff alleges that 1200 [class members] have been misclassified as exempt employees, Plaintiff had to provide common evidence to support extrapolation from individual experiences to a class-wide judgment that is not merely speculative. Plaintiff has not come forward with common proof sufficient to allow a fact-finder to make a class-wide judgment as to the class members. . . . Because Plaintiff lacks common experience, the Court has no confidence that the jury will be able to do anything but speculate as to a class-wide determination.’

Slip op., at 7.  The Court emphasized that it was not permitted to substitute its view of the evidence for the trial court's view:  "As the Supreme Court made clear in Sav-On Drug Stores, Inc., this court cannot now substitute its own judgment."  Slip op., at 12.

Plaintiffs appear to have argued that it is unfair to accept a uniform classification by defendant but require individualized proof of misclassification, an argument that has not been well received at the appellate level as of late.  The argument fared no better here: 

Plaintiffs argue defendants cannot on one hand assert they have determined, based on job activities, that all managers are exempt but on the other hand argue a court must examine each individual’s tasks to determine whether that person is exempt. This argument was answered in Campbell v. PricewaterhouseCoopers, LLP (E.D.Cal. 2008) 253 F.R.D. 586, 603-604, as follows: “Some courts . . . have determined that it is unfair for an employer to ‘on the one hand, argue that all [class members] are exempt from overtime wages and, on the other hand, argue that the Court must inquire into the job duties of each [class member] in order to determine whether that individual is “exempt.”’ [Citation.] But, under Walsh [v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1461,] there is no estoppel effect given to an employer’s decision to classify a particular class of employees as exempt—whether right or wrong, or even issued in bad faith; instead, the only legally relevant issue to alleged misclassification is whether the exemption in fact applies. 

Slip op., at 13.  Continuing with the extensive quotations from Campbell, the Court of Appeal wrote: 

“It may be intuitively unfair to permit an employer, who has historically classified a particular group of employees as exempt based on a uniform rule, to argue in the context of litigation that the exemption inquiry will require an individualized analysis. But the assumption behind such an intuitively appealing argument is that an employer should somehow be bound by its prior position—which is foreclosed by Walsh. ‘[I]n resolving questions of California law, this court is bound by the pronouncement of the California Supreme Court . . . and the opinions of the California Courts of Appeal are merely data for determining how the highest California court would rule . . . [but] the opinion of the Court of Appeals on questions of California law cannot simply be ignored.’ [Citation.]” 

Slip op., at 14.  After Ramirez in particular, misclassification suits were in no small supply.  But the arms race was equalizing by the time Sav-On was decided, and it looks like the defense bar has pulled ahead in this area.  To make misclassification suits a legitimate mechanism for correcting classification errors on a class-wide basis, plaintiffs will need to find news ways to show trial courts that systemic misclassification errors are really correctable on a class-wide basis.

Northern District Court certifies class in misclassification suit against Deloitte & Touche LLP

United States District Court Judge Susan Illston (Northern District of California) certified a class of salaried employees alleging that they were misclassified as exempt by Deloitte & Touche LLP.  Brady v. Deloitte & Touche LLP, 2010 WL 1200045 (N.D. Cal. Mar. 23, 2010).  The class consists of salaried employees in the audit line of service but who were not licensed accountants.  The Court identified common issues of law and fact as follows:

Common questions of law include whether the professional exemption under California law requires a license for accountants, whether accounting is a “learned profession” under California Wage Order 4-2001, and whether the duties of proposed class members would qualify for administrative exception under California law. Common factual questions include whether defendant's standardized policies and procedures prevented the class members from customarily and regularly exercising discretion and independent judgment with respect to matters of significance, whether defendant categorically classified all class members as exempt, whether defendant required class members to work overtime, along with a host of other questions relating to overtime, meal breaks, timekeeping and pay.

Slip op., at 4.  Generally, the Court maintained a sharp delineation between certification questions and merits issues.

Brinker Watch 2010

If you were in a coma for a while, Brinker Restaurant v. Superior Court (Hohnbaum) was fully briefed back in October 2009.  And...that's it.  Other than a striking new logo for 2010, there is no news.  I post this only because this blog receives traffic from Brinker searches on an almost daily basis.  I should have added some sort of extra bit to the logo, like "Now with EXTRA uncertainty...."  Back in September 2009 I moved my estimate for an Opinion release date out from June 2010 to August 2010.  The notice of argument would need to issue in April to make that August Opinion release date a near certainty.  Thus, I need to adjust the over-under to October 2010 to equalize the wagering.  Place your bets, folks.

In brief: Ninth Circuit issues new opinion in Rutti v. Lojack Corporation, Inc.

After granting a panel petition for rehearing, the Ninth Circuit withdrew the Opinion in Rutti v. Lojack Corporation, Inc., 578 F.3d 1084 (9th Cir. 2009), and issued a new opinion, Rutti v. Lojack Corporation, Inc. (9th Cir. March 2, 2010).  The change is significant on the issue of commute time under California law: "[W]e vacate the district court’s grant of summary judgment on Rutti’s claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions, and remand the matter to the district court for further proceedings consistent with this opinion."  Slip op., at 3237.  I may provide a longer post about this change later.  The earlier post on Rutti can be found here.

More thoughts on Jaimez v. DAIOHS USA, Inc.

There is quite a bit to absorb in  Jaimez v. DAIOHS USA, Inc., et al. (February 8, 2010), and I wanted to provide some further commentary.  For example, no California Court of Appeal has interpreted or provided any guidance to trial courts regarding the wage statement "injury" requirement.  Jaimez holds that: (1) "a very modest showing" will satisfy the injury requirement; (2) the filing of a lawsuit and "the difficulty and expense ... encountered in attempting to reconstruct time and pay records" may satisfy the wage statement injury requirement; (3) the "injury" requirement is distinct from "damages"; and, (4) trial courts may certify wage statement classes even without evidence of an injury arising from inaccurate wage statements. Opinion at 22-23.

Jaimez also re-affirms and clarifies key standards applicable to class certification motions, including the fact that the proper predominance analysis is comparative. Jaimez appears to be the first published California Court of Appeal decision since the issuance of Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) to hold that the "relevant comparison lies between the costs and benefits of adjudicating plaintiffs' claims in a class action and the costs and benefits of proceeding by numerous separate actions- not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever." Opinion at 13 (quoting Sav-On, 34 Cal. 4th at 339  n.10). This holding is a good reminder of the "relevant comparison" predominance analysis when examining whether to certify a class.

Jaimez clarifies the role of the trial court when considering issues surrounding certification of meal break classes, holding that trial courts may certify a meal break class regardless of any legal uncertainty regarding an employer's obligation to provide meal breaks. Opinion at 18-19.

Jaimez also establishes important precedent regarding meal break timing requirements.  Employers and employees continue to dispute when employees are entitled to meal breaks.  No California Court of Appeal has offered guidance on this frequently disputed issue. Jaimez holds that trial courts may certify meal break classes based on the theory that an employer failed to provide meal breaks within the first five hours of a shift.

Labor Code § 226 directs employers to provide their employees with "an accurate itemized statement in writing" showing "total hours worked" and "all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate."  When a violation occurs, "[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with [section 226(a)] is entitled to" specified damages. Id.  While this statutory language appears to differentiate between injury and damage, employees in California continue to face substantial resistance to the type of analysis supplied by Jaimez.

No California Court of Appeal has directly construed the wage statement "injury" requirement. Rather, only federal authorities have discussed this issue.  California employers, employees and courts continue to dispute the meaning of the wage statement injury requirement.  Jaimez now provides the first comments from a California Court of Appeal interpreting the wage statement injury requirement, assisting trial courts and litigants in the process.  On this point, Jaimez holds: "While there must be some injury in order to recover damages, a very modest showing will suffice." Opinion at 22.  Going further, Jaimez explains that '''this lawsuit, and the difficulty and expense [Jaimez has] encountered in attempting to reconstruct time and pay records,' may well be 'further evidence of the injury' he has suffered." Opinion at 22.  Adopting the federal approach to identifying injury, Jaimez explains that injury can include "the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked."  Opinion at 22.  This clearly articulated standard was missing from California jurisprudence.

Finally, with respect just to the wage statement aspects of the opinion, Jaimez holds that the absence of evidence at the certification stage of an injury arising from inaccurate wage statements does not preclude class certification because the plaintiff's theory (an erroneous wage statement form) is suitable for class treatment. Opinion at 22-23.

Despite many decisions regarding aspects of class certification, the actual application of certification standards to the facts of a particular case remains an area of substantial confusion for litigants and many trial courts.  Jaimez, citing Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524 (2008), tacitly recognized this ongoing area of difficulty for trial courts when it said, "The trial court misapplied the criteria, focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating 'whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.'"  Opinion, at 13.

Following this general observation about the application of incorrect criteria to the certification question, the Jaimez Opinion follows with one of the more thorough discussions of how to apply correct certification criteria to the specific facts of a case, on a claim-by-claim basis, spanning some 10 pages of the Opinion.  For example, the Opinion provides concrete examples regarding the correct method for evaluating evidence submitted in support or opposition to the motion for class certification:

[H]ad the trial court focused on the correct criteria, it would have necessarily found the First Choice declarations, while identifying individual effects of policies and practices that may well call for individual damages determinations, nevertheless confirm the predominance of common legal and factual issues that make this case more amenable to class treatment.  For example:

• Eight of the First Choice Declarations admit that RSR’s regularly “forego” meal breaks and one states that he never takes a meal break; and
• The First Choice declarations also fail to state that the RSR’s were compensated with an additional hour of pay, as required by California law, when the RSR’s failed to follow their “normal” practice and/or did not receive a 30-minute uninterrupted meal period.

The First Choice declarations actually demonstrate there are numerous predominant common factual issues.  The fact that individual RSR’s may have different damages does not require denial of the class certification motion.  Furthermore, declarations from a small percentage of objectors do not bar class certification.  In sum, the trial court applied improper criteria in evaluating the merits of the First Choice declarants’ statements rather than considering whether they rebutted plaintiff’s substantial evidence that predominant factual issues (if not legal, too) make this case more amenable to class treatment than to myriad individual adjudications (Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 743 (Bell); Richmond, supra, 29 Cal.3d at p. 475.)

Opinion at 15-16.  Opinions with this degree of practical detail about the correct method for evaluating evidence submitted in support of and in opposition to class certification are uncommon.  The rarity of such discussions about the practical mechanics of certification makes this Opinion that much more valuable for practitioners and trial courts alike.  Clarity of legal standards tends to reduce the duration and cost of litigation.

Just as important as the practical demonstration of how to assess evidence supplied by the parties on a contested certification motion is the Opinion's restatement of the correct legal test for evaluating predominance.  Since Sav-On, trial courts have continued to deny certification on the erroneous ground that a complex class action would, by necessity, require management of some individualized inquiries.  Jaimez provides a needed reminder that “'[T]he established legal standard for commonality . . . is comparative.'”  Opinion at 13, citing Sav-On.  Jaimez continues, "Specifically, '[t]he relevant comparison lies between the costs and benefits of adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous separate actions—not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever.  [Citations.]'"  Ibid.  Though simple to state, this principle has received inconsistent application in practice.  Where a legal standard is applied inconsistently, repeated affirmations of the principle will help guide trial courts towards greater homogeneity of their analyses.   

The Supreme Court is currently considering appeals of the decisions in Brinker Restaurant Corp. v. Superior Court [previously reported at 165 Cal. App. 4th 25 (2008)] and Brinkley v. Public Storage, Inc. [previously reported at 167 Cal. App. 4th 1278 (2008)], both of which address, among other things, issues surrounding meal period requirements.  Jaimez bluntly observes that the law in this area is unsettled.  Despite this uncertainty, since Petitions for Review were granted in Brinker and Brinkley, trial courts throughout the state have routinely declined to decide matters based on existing law, proposing to stay wage & hour class actions while awaiting Supreme Court decisions that may not be issued until late 2010 or later.

Prior to publication, no California case addressed the issue of how to apply the standards for class certification to meal and rest break claims while the Brinker and Brinkley cases are pending before the California Supreme Court.  Moreover, the conflict between the court of appeal's decision in Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 944 (2005) and a number of federal district court decisions also remains unresolved.  The Court, in Jaimez, found a way to avoid paralysis while awaiting Supreme Court decisions in Brinker and Brinkley. Jaimez held that a court "need not try to predict the outcome of the Supreme Court's review [of, in this case, Brinker and Brinkley], as we are not, at this stage, charged with adjudicating the legal or factual merits of Jaimez's causes of action."  Opinion at 19.

Jaimez makes it clear that trial courts need not stay class actions pending the outcome of the Supreme Court's proceedings in Brinker and Brinkley simply because they involve meal and rest break claims. California trial courts that are frequently being asked to deny or delay class certification of meal and rest break claims will find the Court's demonstrative application of class certification principles to meal and rest break claims helpful.

There is also a strong argument that, under California law, employees must have a 30-minute, uninterrupted meal break within the first five hours of a shift.  Labor Code § 512 say, "An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes .... "  Wage orders provide: "No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes .... "  And the California Supreme Court said, "Pursuant to IWC wage orders, employees are entitled to an unpaid 30-minute, duty-free meal period after working for five hours .... "  Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1104 (2007).

Despite these and other suggestive authority, trial courts continue to encounter employers and employees that dispute when employees are entitled to meal breaks. No California Court of Appeal has offered explicit guidance on this issue before this opinion. Jaimez found that trial courts may certify meal break classes based on the theory that an employer failed to provide meal breaks within the first five hours of a shift. See Opinion at 19 (observing that individual issues do not predominate because the First Choice's declarations "fail to establish that any of the meal breaks were: (1) uninterrupted, (2) for 30 continuous minutes, or (3) provided within the first five, hours of a shift").

There is a lot to chew on in Jaimez (much of it not all that palatable to employers).  I can't imagine that, with an opinion this comprehensive, we've heard the last about Jaimez.  There is more to read about in Jaimez (like what to do when the plaintiff is inadequate), but I am done writing about it.